Lufkin v. Preston

Rothbock, J.

1. reecjsvin : notice. ’ I. The plaintiff offered upon the trial to-prove by J. W. Butler, the justice of the peace who issued the execution, that at the time the execution was issued, and before any levy was made, the defendant and the constable were both advised that the corn in question belonged to the plaintiffs. Objection was made to this evidence and the objection was sustained. In this we think the court erred. As there could be no actual manual delivery, and a visible change of possession of the growing corn, it was a material question as to whether the defendant as a creditor of Morris had notice of the assignment of the leases before he made the levy. Code, section 1923.

II. The court gave to the jury the following among other instructions:

“2d. The plaintiffs claim ownership and right of possession by virtue of the assignment of certain leases from one *237 Morris to them. The assignment of the leases gave the plaintiffs the right to take possession of the corn after it had been grown and was matured; but the title did not vest,in them until such time, and until they had taken possession thereof. And if, before the'plaintiffs took possession, the corn was levied upon and sold to defendant under an execution on a judgment in favor of the defendant and against said Morris, then the title to the corn would pass to the defendant by virtue ■of such sale. And, in case you so find, the plaintiff cannot recover.”

2_-lease-assignment of. This instruction was erroneous because it ignores the question as to whether the defendant had notice of the assignment the ^eases before he caused the corn to be seized the execution. It must be conceded that the defendant could by his levy and sale acquire no other nor greater interest in the growing crop than was held by Morris. It must also be conceded that if Morris had in good faith assigned all his interest in the leases to the plaintiff, and the •defendant had notice of such assignments, there was no interest of Morris in the corn subject to the levy and sale. The doctrine contended for by appellee and adopted by the court would be a restriction upon the assignment of contracts that it seems to us has no warrant in the law. If the assignments were not fraudulent as to creditors they invested the plaintiffs with all the right Morris had: that is, the right to one-half of the corn at harvest time. Their right to the corn was good .as against all the world excepting creditors without notice.

It is true it has uniformly been held by this court that the owner of the land acquires no property in the part of the crop reserved for rent until it is ascertained and set apart to him by the tenant. Rees v. Baker, 4 G. Greene, 461; Townsend & Knapp v. Isenberger, 45 Iowa, 670 . But it has never been held that a landlord may not assign his interest in the lease, and thus invest his assignee with the right to secure the rent when it is in a condition to be set apart'; and we apprehend that, if the tenant were to deliver the landlord’s share of the grain to a stranger having no right to it, the landlord or his assignee could maintain replevin to recover it. If the assign *238 ments in this case were valid, and not fraudulent, and the defendant had notice, he acquired nothing by his levy and sale and his possession was wrongful.

3 _. title to office. III. It was sought by the appellants to show that the person who acted as constable in makiug the levy and sale was not a legally elected and qualified officer. This was an immaterial issue iu the case. It was shown that he was acting as constable. This .was sufficient. The action is replevin. The plaintiffs must recover upon the strength of their own title and right to the possession, and besides, they cannot in replevin try the right to an office held by a person not a party to the action. For tbe error in excluding tbe evidence as to notice, and in giving the instruction above set out, the judgment must be reversed and the cause remanded for a new trial.

Reversed.